Putting on my doctrinalist's hat, rather than my historian's hat, I was nonplussed by Deborah Pearlstein's casual statement that if we recognized a fundamental right to keep and bear arms "that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring."

Where did the idea come from that the fundamental rights listed in the Bill of Rights are generally protected by a test of strict scrutiny?

As I look through the list of fundamental rights, there are only a limited number of them where we use such a test. Take just the first amendment as an example. We do not use the strict scrutiny analysis for libel, and we do not use it for time place and manner regulation, we do not use it in press access cases, we do not use it in telecommunications cases, and we do not use it in copyright cases. Outside of the First Amendment, we do not use strict scrutiny in cases involving the right against searches and seizures,or the right against compelled self-incrimination, or the right to a jury trial, or the right to representation by counsel. We do not use strict scrutiny analysis in Eighth Amendment cases.

Scrutiny analysis is a very recent methodology in our history, and it has only been applied selectively in the area of fundamental rights, including most importantly, the rights contained in the Bill of Rights. How the judiciary protects rights depends on the nature of the right, not on some one-size-fits-all mantra. I am frankly amazed by the idea that recognizing a second amendment right to keep and bear arms would mean that all gun regulations would be subjected to the same strict scrutiny that applies to content based regulations under the first amendment. (I should note that even this test is actually fudged in practice: the Court does not apply it to a wide range of content based regulations of speech acts that it simply declares are not protected speech.). The natural analogy would be not to cases involving content based regulations but to the reasonableness test under the Fourth Amendment or to the test of time, place and manner regulation, which is designed to protect public health, safety and convenience. Of the forty-some state courts that have recognized a right to keep and bear arms in their state constitutions, I know of very few that apply a test of strict scrutiny of the kind Deborah suggests. The state courts have recognized this right for some time, and I don't see a lot of cases where courts hold "that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason." As Deborah suggests, I'm all for paying attention to our modern doctrinal inheritance. But let's look at that inheritance more closely.

Expecting strict scrutiny where an enumerated right explicitly forbids the government to do something is just the kind of mistake non-lawyers tend to make, out of the belief that the judiciary is charged with enforcing the Constitution.

Though I'm not so certain it shouldn't be regarded as a "disagreement", rather than a "mistake".

I thought Prof. Balkin was clear, but apparently you missed his point.

The 2nd Amendment is in the Constitution. And I agree with the gun rights side that it protects an individual right. I further agree that it is "fundamental" in the sense that is incorporated in the 14th Amendment and enforceable against state governments.

But LOTS OF FUNDAMENTAL, INCORPORATED RIGHTS in the Bill of Rights are not protected by strict scrutiny and should not be. The Fourth Amendment is the most obvious example-- a search or seizure has to be reasonable, not necessary to serve a compelling state interest. Similarly, a taking is fine as long as it is justly compensated; the taking does not have to meet strict scrutiny (and even the property rights side of the Kelo case didn't claim that it did). The Eighth Amendment bars cruel and unusual punishments, but it doesn't require that the government justify the punishments as necessary to serve a compelling state interest.

So the Second Amendment right gets a different level of scrutiny from the First Amendment or the equal protection clause, for lots of good reasons-- it is a different right, a different text, a different subject matter.

Each constitutional right has a different content and a different context. There's no reason why we should treat them all the same in terms of level of scrutiny. And not treating them the same doesn't make one more important than another-- it just means that some rights have a different scope than others.

Doctrinally, I'm not sure Jack is right here. In at least many of the contexts he has identified, I think it's possible to say that the doctrinal tests he has in mind are designed to tell us whether the underlying constitutional norm is implicated at all -- whether the case presents a "First Amendment event," for example. But answering yes to that question might not resolve the matter. In at least some contexts, we then ask the follow-on question whether the government can justify the infringement of the right. And that's where strict scrutiny comes in.

Consider race discrimination, an area where we generally agree that strict scrutiny applies. What, then, to make of Batson doctrine in jury selection? Is it an exception to strict scrutiny? That is, in cases involving alleged race discrimination in jury selection, does Batson apply instead of strict scrutiny? I don't think so. Instead, I think Batson applies *before* strict scrutiny. We use Batson's framework to determine whether the state has infringed the constitutional norm against race-based discrimination. If we conclude under Batson that the state *has* infringed that norm, the next question is whether it's a justifiable intrusion. That's where strict scrutiny comes in.

To be sure, you essentially never see a Batson opinion that engages in strict scrutiny after concluding that the juror strikes in question were the result of purposeful race discrimination. But that's because the state really never defends its actions on those grounds. I.e., the state doesn't even try to prevail on strict scrutiny. Instead, it argues that the instant case doesn't trigger strict scrutiny at all, because it doesn't infringe the underlying constitutional norm.

My sense is that many of the doctrines Jack has in mind can similarly be thought of as operating at the threshold level, to determine whether the relevant constitutional norm has been infringed. It's also my sense that in many of these areas, as in the Batson context, all the action is at the threshold step because the state rarely tries to justify an actual infringement of the norm. Instead, it argues that the norm simply wasn't implicated/infringed. If the state were to try to justify the infringement, however, strict scrutiny might well apply.

If I'm right in all this, it means that Deborah Pearlstein may be technically right in her characterization of strict scrutiny's application. But it also means that Jack is right that, practically speaking, some test other than strict scrutiny is where the action tends to be.

That's an intelligent distinction, and I didn't want to get into that issue because it requires a long explanation, but you are right that there's a difference between scope of the right and what level of scrutiny applies when the right is implicated.

Thus, one could imagine a test that said that most gun regulations are outside the scope of the Second Amendment entirely (because the text of the provision expressly permits regulation of the militia) but that regulations that actually prevent people from keeping and bearing arms at all are subject to strict scrutiny.

The thing is, though, that I am not sure that outside of the equal protection, substantive due process, and (sometimes) First Amendment contexts that even this happens. For instance, if I establish that the government conducted an unreasonable search (thus implicating the Fourth Amendment), the government doesn't then get to defeat the Fourth Amendment claim by saying that in fact the search was the least restrictive means of serving a compelling state interest.

The truth is that the levels-of-scrutiny approach is only used in a few contexts (though rational basis actually is somewhat more common than the other levels of scrutiny). And, of course, what gun rights advocates really want is not a Second Amendment that, in the limited situations where it is invoked, strict scrutiny is applied. No, they dream at night of sweeping away the nation's gun control laws by applying strict scrutiny to anything the NRA disapproves of.

First Amendment jurisprudence is actually a perfect template as to how to apply the Second Amendment right.

Just as content based restrictions on speech are subject to strict scrutiny with exceptions for unprotected speech, restrictions on keeping (owning firearms) should be subject to strict scrutiny with the exception of arms which do not fall under the right.

DC's prohibition of handguns is a perfect example. It appears as if a majority of justices will find that the Second Amendment right will extend to handguns. Even if they do not establish a formal standard of review, the majority will be effectively applying strict scrutiny if they find the DC prohibition to be facially invalid without exploring the city's purposes for the ban.

Reasonable time, place, and manner restrictions are placed on speech in public areas where the rights of the speaker may come into conflict with the rights of others. Similarly, reasonable place and manner restrictions should be permissible on the public bearing (carry) of firearms.

Consequently, shall issue concealed carry laws are likely to survive under such scrutiny so long as competent and law abiding citizens are permitted a reasonable opportunity to bear their arms, whereas may issue carry laws which enable the government to arbitrarily deny a competent and law abiding citizen her right to bear arms would not survive.

So the Second Amendment right gets a different level of scrutiny from the First Amendment or the equal protection clause, for lots of good reasons-- it is a different right, a different text, a different subject matter.

Why?

The blanket language of the Second Amendment - "shall not be infringed" - is as emphatic and broader in application than the language of the First Amendment limited to Congress - "Congress shall make no law...abridging the freedom of speech." If taken literally, the First Amendment should not bar the Executive or Judiciary from abridging the freedom of speech.

"But LOTS OF FUNDAMENTAL, INCORPORATED RIGHTS in the Bill of Rights are not protected by strict scrutiny"

Yup.

"and should not be."

We'll have to disagree there.

"The Fourth Amendment is the most obvious example"

The Fourth amendment does not prohibit searches and seizures, it explicitly permits them, under specified circumstances. Ditto for takings. The constitutional question in any given search, seizure, or taking, then, is whether those conditions were met. (The Court, to it's eternal shame, decided to replace the condition for takings with one it found more congenial.)

The Second amendment, by contrast, does not lay out conditions for infringing on the right of the people to keep and bear arms. It says that it shall not be infringed. Once we've determined the extent of that right, no amount of justification can constitutionally permit transgressing it.

The First Amendment also says that Congress shall make no law abridging the free exercise of religion-- and yet nobody believes this prohibits all or nearly all regulation of religion. The First Amendment also says that Congress shall make no law abridging the freedom to petition the government for the redress of grievances, yet nobody believes that this prohibits all or nearly all regulation of relating to the submission of petitions.

The Eighth Amendment is definitive in prohibiting excessive fines or bail or cruel or unusual punishments. Yet the courts use balancing tests and history to determine what these provisions actually prohibit. The Fifth Amendment guarantees the right to confront witnesses, and yet longstanding hearsay exceptions not mentioned in the Amendment remain in place.

And, of course, EVEN AS TO THE FIRST AMENDMENT FREE SPEECH RIGHT, nothing close to an absolute right is recognized. Not only are time, place, and manner restrictions not subject to strict scrutiny, but neither are restrictions of categories of unprotected speech, false statements of fact, commercial speech, speech by public employees, speech by students, or certain types of speech in political campaigns. Despite what Hugo Black said, "no law" definitely does not mean "no law".

Further, you are taking the second clause of the Second Amendment out of context. If the First Amendment said "well regulated political discourse being necessary to the maintenance of a free republic, Congress shall make no law abridging the freedom of speech", you can bet it would get a narrower interpretation. Indeed, the text of the Second Amendment DIRECTLY AUTHORIZES REGULATION of guns. In contrast, the First Amendment truly is categorical in its language-- "no law" and "well regulated" are pretty much the antithesis of each other.

Moreover, guns are simply DIFFERENT than speech. That doesn't mean they aren't both constitutional rights. But anyone who TRULY believes that owning a gun has anything at all in common with, say, holding up a "McCain for President" sign hasn't really thought this issue through. I mean, race discrimination is also subject to a strict scrutiny test. Why not say "gun rights should be protected with the same standard as race discrimination because they are similar". That's just as wacky.

The D.C. gun ban is unconstitutional because at some point you have to draw a line between regulation and prohibition, and the D.C. gun ban falls on the wrong side of that line, drawn in any reasonable place. But that's not strict scrutiny at all-- that's just saying that the Second Amendment sets out a line that the government cannot cross, just as, for instance, the Sixth Amendment is violated when you try a person for a felony without a jury or a jury waiver.

The problem with the gun rights advocates is that they are judicial activists who want the Constitution to say what they would like it to say. If you really want the Second Amendment to be like the first, Bart, I would suggest you stop trying to get the courts to violate their Article III powers and act as a super-legislature by rewriting the laws from the bench to fit your ideology and override the democratically expressed preferences of the people and instead sponsor a constitutional amendment to remove the "well regulated militia" language from the provision.

But, Dilan, I'm perfectly content to have that militia language there; There's precious little I can do with arms that I can't do with arms suitable for military use, and all that militia language is there to do is underscore that it's a right to, as Tenche Coxe said to Madison's approval, "Their swords, and every other terrible implement of the soldier"

Why would I want to reduce that to "Their 3 round shotgun, and every other puny implement of the hunter"?

My response was to Bart, who suggested that the Second Amendment was directly analogous to the First Amendment. The First Amendment contains nothing similar to the well-regulated militia portion of the Second Amendment.

The fact of the matter is that the Second Amendment protects an important right (one that I would say is fundamental)-- certainly the framers believed that having an armed populace was essential to the nation's security. The "militia", in their parlance, was the armed citizenry, not the National Guard.

Thus, the individual rights approach that the Court seems to be about to take is the correct one. But the language of the Second Amendment (as well as the militia clauses of the Constitution itself) clearly contemplates that the federal and state governments would have the power to regulate the militia. Not only does the Second Amendment itself provide for a well-regulated militia (and even if "regulated" means "disciplined" or "trained", as many gun rights advocates claim, maintaining the discipline and training of the militia permits substantial regulation), but inherent in the concept of a "militia" itself is that the right to bear arms operates under close governmental supervision. To deal with Bart's argument directly, the absolutist language that the right "shall not be infringed" simply shows us that the framers did not believe that regulations that required militia members to show up with their arms for drills, store them properly, register them, take a safety class, etc. were an "infringement" on the right to bear arms. Rather, such regulations were consistent with the concept of a well regulated, well disciplined, well trained militia.

What Bart wants to do is apply strict scrutiny to strike down regulations that are plainly contemplated by the text of the Second Amendment and the militia clauses of the Constitution. That's why he's advocating judicial activism and legislating from the bench, overriding the valid choices of the democratic branches of government and rewriting the Constitution, rather than properly seeking an amendment.

"the framers did not believe that regulations that required militia members to show up with their arms for drills, store them properly, register them, take a safety class, etc. were an "infringement" on the right to bear arms."

Quite true, but the sort of regulations you're properly defending, are NOT the sort of regulations 2nd amendment activists spend their time fighting off.

For instance, in the founding era there were powder storage regulations, quite justified by the severe danger of fire given heating with open fires, and loose black powder. Today D.C. has 'storage regulations' aimed at making sure any arms a citizen may manage to have will be effectively unuseable.

In the founding era, we had the militia acts, requiring people to prove they had certain arms, so as to assure that a militia could be raised. Today we have gun registration laws, demanding that people keep the government aware of all arms they might own, to facilitate their confiscation, while not requiring ownership of anything.

The 2nd amendment is consistent with a quite high level of regulation, but regulations which bear little or no resemblance to the sort of regulation we see today.

It's quite as if you said that the 1st amendment was consistent with regulations imposing compulsory schooling, and then on the basis that it was consistent with some form of regulation, tried to defend laws banning the private teaching of certain subjects.

A right may be consistent with regulations designed to further it's aims, while still utterly prohibiting regulations specifically intended to FRUSTRATE those aims.

The term "well regulated" applies to the term militia and in that combination simply means "disciplined.

The term "well regulated" alone or in combination with the entire preamble clause does not limit the main clause guaranteeing the People's right to keep and bear arms from infringement.

To start, under the basic rules of grammar, the premable clause of the Second Amendment is not a command at all, but simply an observation that a disciplined militia is necessary for the protection of a free people. It is aspirational language giving a purpose for the Second Amendment right.

Furthermore, this offered purpose is not exclusive. Multiple state constitutions of this era offered preamble clauses for provisions guaranteeing free speech. Courts have held that these preamble clauses are simply non-exclusive examples of the purposes of free speech, not limits on the right itself.

The only command is contained in the main clause of the Second Amendment and states that the People's right to keep and bear arms shall not be infringed. Your interpretation of well regulated as enabling the government to substantially regulate the right directly contradicts this command. If the right was limited as you argue, the main clause would state "the right of the People to keep and bear arms shall be well regulated." It plainly does not.

To the extent that this language is unclear, the evidence of original intent is not. Article I expressly provided Congress the power to train and discipline the militia before the Second Amendment was even drafted. One of the arguments for the adoption of the Second Amendment was to keep Congress under the guise of regulating the militia from disarming the armed citizenry. Consequently, it would be queer indeed to argue that the preamble clause of the Second Amendment actually authorizes such extreme regulation.

While it most definitely has the Article I power to require the citizenry undergo militia training, the Congress does not have the power to condition the enjoyment of the Second Amendment right on that training.

Jack Balkin is so obviously right here I don't know what to say. It's like he's trying to explain the Earth is round and you're all conjuring up competing theories of reconstructed flatness. Give up and give the man his due. He's not renouncing liberalism; he's just telling the truth.

I would love to see this debate on bloggingheads.tv between Balkin and Posner.

So we should all, individually, aspire to keep and bear arms? Failure to so aspire means what? Lack of patriotism? Does having this right give rise to any obligations, and if so, are regulations required for such obligations? Does aspiration lead to inspiration? And if there is need once again for a Militia, how will it be regulated, excuse me, displined, and by whom (democratic process?)? Yes, this all so simple that even the simple-minded can figure it out, looking back over 200 years. Let's see how simple-minded SCOTUS turns out on Heller.

Please do not misquote me. My post had an "a" between "giving" and "purpose." As I discussed above, the preamble clause states a non-inclusive purpose, not the only purpose of the right.

So we should all, individually, aspire to keep and bear arms? Failure to so aspire means what? Lack of patriotism? Does having this right give rise to any obligations...?

No more than the 1st Amendment provides for a duty to speak. The drafters actually debated whether specific language needed to be added to the Second Amendment to make clear that it did not compel militia duty and it was concluded that the language did not compel this result.

And if there is need once again for a Militia, how will it be regulated, excuse me, displined, and by whom (democratic process?)? Yes, this all so simple that even the simple-minded can figure it out, looking back over 200 years. Let's see how simple-minded SCOTUS turns out on Heller.

These powers are expressly granted to Congress in Article I and generally granted to the President as CiC in Article II. In stark contrast, the Bill of Rights established limitations on the power of the federal government.

The issue before the Heller Court is not who may exercise the power to regulate the militia, but rather the scope of the limitations of government power to infringe on the right of the People to keep and bear arms.

Yes, Bart, I definitely omitted, unintentionally, the indefinite article from the quote I attributed to you. I regret doing so. In your critique of my critique, you state: “As I discussed above, the preamble clause states a non-inclusive purpose, not the only purpose of the right.” While you did not state that explictly in your prior comment, the paragraph immediately following what I quoted starts: “Further, this offered purpose is not exclusive.” Clearly, that sentence applied to the “preamble” portion of the Second Amendment. But you did not go on to identify, in your earlier comment, what other purposes there might be beyond your “aspirational” one, if any there be. Should I assume that you attribute these purposes to the framers as opposed to the text?

With this correction and further observation, my critique of your original comment is renewed. And if you wish to describe any other purpose, beyond the “aspirational,” I eagerly await.

Meantime, I have to get back to preparing Cuban sandwiches for a light Saturday dinner with my wife, accompanied with a limed long neck Corona and homemade cucumber pickles, while listening to Garrison Keillor’s “A Prairie Home Companion” hoping that in his English major segment he addresses the Second Amendment.

Not only does the Second Amendment itself provide for a well-regulated militia (and even if "regulated" means "disciplined" or "trained", as many gun rights advocates claim, maintaining the discipline and training of the militia permits substantial regulation), but inherent in the concept of a "militia" itself is that the right to bear arms operates under close governmental supervision. To deal with Bart's argument directly, the absolutist language that the right "shall not be infringed" simply shows us that the framers did not believe that regulations that required militia members to show up with their arms for drills, store them properly, register them, take a safety class, etc. were an "infringement" on the right to bear arms. Rather, such regulations were consistent with the concept of a well regulated, well disciplined, well trained militia.

Bart said in response:

The term "well regulated" applies to the term militia and in that combination simply means "disciplined.

I said:

Further, you are taking the second clause of the Second Amendment out of context. If the First Amendment said "well regulated political discourse being necessary to the maintenance of a free republic, Congress shall make no law abridging the freedom of speech", you can bet it would get a narrower interpretation.

Bart replied:

To start, under the basic rules of grammar, the premable clause of the Second Amendment is not a command at all, but simply an observation that a disciplined militia is necessary for the protection of a free people. It is aspirational language giving a purpose for the Second Amendment right. Furthermore, this offered purpose is not exclusive. Multiple state constitutions of this era offered preamble clauses for provisions guaranteeing free speech. Courts have held that these preamble clauses are simply non-exclusive examples of the purposes of free speech, not limits on the right itself.

In other words, it doesn't look like Bart read my arguments before replying to them, and in all respects but two, I refer him to the points already made.

With respect to state constitutions, the problem with that argument is that state free speech provisions cannot be interpreted more narrowly than the First Amendment, because the First Amendment has been incorporated against the states since Gitlow v. New York in the 1920's. So there's no opportunity for state courts to interpret a preamble as narrowing the text of a free speech right. In contrast, if the FEDERAL constitution had a preamble that stated the purpose of the right, it would get a narrower interpretation.

Further, Bart is being totally dishonest (as he always is) about the issue of grammar. When a statute has a purpose clause, it is considered to be strong evidence of legislative intent (because unlike a committee report, it reflects a statement by the entire legislature). Same with purpose clauses in contracts. For instance, in Padilla v. Hanft, the 4th Circuit held that the purpose clauses of the Authorization to Use Military Force after 9/11 could be used to interpret its scope. I doubt Bart thinks that was wrongly decided.

He knows that as a lawyer he argues the importance of purpose clauses all the time; we all do. But he lies and hopes that the people reading this comments thread won't know that he is lying.

I will go back to what I said before. Bart wants to write the militia clause out of the Second Amendment. He does not have the votes to pass a constitutional amendment. So he looks to the judiciary to rewrite the laws. He is the worst type of judicial activist.

"With respect to state constitutions, the problem with that argument is that state free speech provisions cannot be interpreted more narrowly than the First Amendment, because the First Amendment has been incorporated against the states since Gitlow v. New York in the 1920's."

And, of course, history began in the 1920's, right? States have had constitutions of their own, and had courts construing them, since before the Constitution existed. I would presume there are some examples of courts construing freedom of speech provisions of state constitutions some time during the first 140 or so years of this nation's existence.

There's no principle that says a constitutional purpose clause is a nullity while statutory and contractual purpose clauses are among the strongest interpretative devices. That's silly and idiotic. Gun rights advocates want to disregard this purpose clause because they don't have the votes to get it out of there; it's rewriting the constitution, pure and simple. You are the worst kind of judicial activist, Bart. You should be absolutely ashamed of yourself for trying to rewrite the Constitution to reflect your personal beliefs on guns. But, of course, judicial activists like you have no shame when you are changing the clear meaning of terms in the Constitution just because you can't get what you want from the democratic process.

Brett:

Before 1920, you will find that state free speech, like federal free speech, didn't get much action in litigation. After 1920, the state courts were constrained by Gitlow.